Cherokee Phoenix

Note: this issue is published in 4 columns only

Published April, 16, 1831

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Note: this issue is published in 4 columns only.


From the National Intelligencer.


of Mr. Frelinghuysen in the Senate of the United States,

February 15th, 1831.

The following Resolution being under consideration, on its passage:

'Resolved, That the President of the United States to be requested to inform the Senate whether the provisions of the act, entitled 'An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers,' passed the 30th March, 1802, have been fully complied with on the part of the United States' Government; and if they have not, that he inform the Senate of the reasons that have induced the Government to decline the enforcement of the `said act.'

An exception being taken to:

Mr. FRELINGHUYSEN, of New Jersey, addressed the Senate to the following effect:

Mr. PRESIDENT: I have presented this resolution for the purpose of certainly ascertaining the views and purposes of the Executive in respect to the Indian relations of the Government. We cannot officially rely upon any report or information but that which comes to us under the official sanction of the Chief Magistrate. And, sir, the Senate and the Nation have a right to know his policy. I am aware, that the Secretary of War, in his report to the President of December last, has undertaken to dispose of the Intercourse Law of 1802, by a very short process. He has, indeed, cut the gordian knot. He assumes the whole ground of the Indian controversy; takes as established, without argument or proof, the whole matter in issue, and then very gravely draws the conclusion, that this law is unconstitutional, and ought not to be executed. He assert the red men to be citizens of the States, and inquires, as if surprised at the necessity of asking the question, whether a sovereign State has not the right to legislate over all her citizens, white and red? Sir, he has not even undertaken to show how the red men, the Cherokees for example, became citizens of Georgia, and yet the suggestions of his report are put forth as a serious exposition of public law.

A brief reference to the provision of this law, and the causes which led to its enactment, will shed very clear light upon its nature and obligation. Until the year 1795, the relations of the United States with the Indian tribes, chiefly rested upon the stipulations continued in our treaties made with these nations, and the principles of general law. About the time first named, our Government considered this subject to be of sufficient importance to engross the distinct deliberation and legislation of Congress, and accordingly, in the session of '96, the Congress of the United States raised a committee on regulating trade and intercourse with the Indian tribes, and to preserve peace on the frontiers. While the matter was subsisting before this committee, a communication was made by the then President of the United States, (General Washington,) which while it illustrates the character of that exalted statesman, affords a very valuable portion of history, that will refresh the hearts and encourage the hopes of every friend of the Indians. After the treaties made by the United States with the Cherokees in the years 1785 and 1791, usually known by the names of the treaties of Hopewell and Holston, intrusions were repeatedly meditated upon the territories of that nation, and Governor Blount, of the territory south of Ohio, in 1796, apprized President Washington of these designs; upon which he addressed a message to Congress, as appears in the following extract from the Journals of the House of Representatives:

'TUESDAY, Feb. 2d. 1796- A message in writing was received from the President of the United States, by Mr. Danridge, his secretary, as followeth:

'Gentlemen of the Senate and House of Representatives:- I transmit herewith a copy of a letter, dated the 19th of Dec. last, from Governor Blount to the Secretary of War, stating the avowal and daring designs of certain persons to take possession of land belonging to the Cherokees, and which the United States have by treaty solemnly guarantied to that nation. The injustice of such intrusions, and the mischievous consequences which must necessarily result therefrom, demand that effectual provision be made to prevent them.


United States, Feb. 2d. 1796'

Here the principles and spirit of Indian Intercourse are traced up to their head spring. We rejoice to find their origin, in the spirit of unbroken faith and sacred honor, that sheds its radiance over this Executive document. Sir, this record of other times, now, when to break faith with an Indian is construed into something short of dishonor-now, when the clouds are gathering over and around the hopes of those forsaken people-at this gloomy epoch in their history, to look upon this solemn acknowledgement of all their rights as 'a nation' and our sacred obligations by 'treaty' and under Washington's own hand, is a grateful subject for consolation. Would, sir, that General Jackson might be persuaded to put away from him all those hasty, ill-considered counsels, that are leading him away from the bread and luminous path of illustrious precedents.

But to proceed with the history. This message and the letter were, in the first place, referred to the Committee of the whole House, and afterwards to a Select Committee of sixteen members, composed of Mr. Hillhouse, Mr. Cooper, Mr. Findley, Mr. Jackson, Mr. Franklin, Mr. Henderson, Mr. Harper, Mr. White, Mr. Abiel Foster, Mr. Dearborn, Mr. Malbone, Mr. Buck, Mr. Patten, Mr. Milledge, Mr. Gresnup, ' Mr. Crabb. In the selection of this committee, we perceive the importance that was attached to the subject matter of General Washington's communication and the principles that should regulate our Indian affairs. A committee of the first names in Congress, members from the different States, and Georgia of the Number, take up the treaties made with these tribes, and the duties, rights, and privileges that grew out of our relations, and reported to Congress the first intercourse bill, which became a law in May, 1796, and which, in all its material provisions, is now the subsisting and unrepealed law of the land.

These treaties had, amongst other things, traced and settled the boundary lines of territory between the United States and the Indians. And in the few sections of this law to which I shall invite the attention of the Senate, they will perceive that the Congress of 1796, of 1799, and of 1802, the several periods when this law came under public consideration, that these boundaries specified in the treaties were recognized and adopted and became the governing line of territory, in the first section of the bill. This law, like the treaties, runs the broad line between the State of Georgia and the Cherokees, and recognizes it as the boundary between separate and distinct nations-between 'citizens of the United States', and 'the Cherokees,' in specific and appropriate terms. No one of all the enlightened and exalted men who filled the seats of power, and aided in the counsels of the country in 1796, entertained the notion for a moment, that Georgia had even the color of a claim to the property or persons of these tribes of free and, as to her, independent people, and they legislated concerning them accordingly. After thus fixing the boundary, the second section of the law enacts, that if any citizen of, or other person resident in, the United States, or either of the territorial districts of the United States, shall cross over or go within the boundaries of said line to hunt, 'c. or shall drive or other wise convey any stock of horses or cattle to range on any lands allotted or secured by treaty with the United States to any Indian tribes, he shall forfeit a sum not exceeding one hundred dollars, or be imprisoned not exceeding six months. And by the fourth section it is further enacted, that if any such citizen or other person shall go into any town, settlement, or territory be longing or secured by treaty with the United States, to any nation or tribe of Indians, and shall there commit robbery, larceny, trespass, or other crime, against the person or property of any Indian or Indians, which would be punished if committed within the jurisdiction of any State, against a citizen of the United States, 'c. such offenders shall forfeit a sum not exceeding one hundred dollars, and be imprisoned not exceeding 12 months. Sir, who can fail to perceive how perfectly palpable is the distinction between the jurisdiction of any State of the United States, and the territory of the Indian nations. Every provision of this law is based upon this distinction, and would be absurd and incongruous without it.

Again, sir, the 5th section provides 'that if any such citizen or other person shall make a settlement on any lands belonging or secured or guarantied, by treaty with the United States, to any Indian tribe or shall survey or attempt to survey such lands, or designate any of the boundaries, by marking trees or otherwise, such offender shall forfeit a sum not exceeding $1000 ' suffer imprisonment not exceeding 12 months; ' it shall moreover be lawful for the President of the United States to take such measures and employ such military force as he may judge necessary to remove from lands belonging or secured by treaty as aforesaid, to any Indian tribe, any such citizen or other person, who has made or shall be hereafter make or attempt to make a settlement thereon.' Here, again, the unambiguous principles all our national policy are developed too plainly to be mistaken, or misunderstood. A policy, thus sanctioned by the concurrent opinions of six successive President, and by the harmonious legislation of Congress for the last thirty five years, is suddenly assailed by the opinion of the Secretary of War, and sought to be frustrated and avoided- and for what, sir? For what? To enable the State of Georgia to break over this boundary-this sacred boundary-to invade the possessions of our allies-and deprive them of their property and liberties.

Let us for a moment review some of the features of Georgia legislation. Our act, be it remembered, prohibits all surveys or attempts at surveying of Indian lands, by any citizen of the United States, or other persons. Georgia has, by a late act of her Legislature, resolved to survey the Cherokee country- now listen-

Sec. 33. And be it further enacted, That any person or persons who shall, by force, menaces, or other means, prevent, any surveyor or surveyors, from running any line or lines, or doing and performing any act required of him or them by this act, shall on indictment, and conviction thereof, be sentenced to the Penitentiary, at hard labor, for the term of five years.

And the following section still further discloses the nature of the proceedings in that State, of which we complain.

Sec. 7. And be it further enacted by the authorities aforesaid, That all white persons residing within the limits of the Cherokee Nation, on the first day of March next, or at any time thereafter, without a license or permit from his Excellency the Governor, or from such agent as his Excellency the Governor shall authorize to grant such a permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of high misdemeanor, and upon conviction hereof, shall be punished by confinement in the Penitentiary of hard labor, for a term not less than four years: Provided that the provisions of this section shall not be so construed as to extend to any authorized agent or agents, of the government of the United States, or to any person or persons who may rent any of those improvements, which have ben abandoned by Indians, who have emigrated west of the Mississippi: Provided that nothing contained in this section shall be so construed as to extend to white females, and all male children under twenty years of age. Sir, the crisis has arrived, when this conflict must be decided. Here is direct repugnancy between the legislation of the United States, and that of Georgia. Where is the executive arm of the General Government to protect our laws and our treaties from violation? I cannot, sir, anticipate that the president will refuse to execute the laws of the land. I must hear it from himself. I maintain it, sir, as one of the soundest principles of our Constitution, that the Executive does not possess the tremendous power of dispensing with the enforcement of public statutes. If a constitutional scruple shall affect the mind of a President of the U. S. in respect to any act of Congress, he must get rid of his scruples, or lay down his commission: but while he holds his office, he must faithfully execute every law. It is absolutely imperative. The people of this country will jealously watch over this branch of executive duty. They will expect its fulfillment sir, to the very letter. Of all the men in this nation, the President is the last who should pause upon the requirements of any statute. He, at least, should be exemplary in obedience.

It may be and has been said, that the opinions of the President may be inferred from the report of the Secretary of War, made on this subject and by the President communicated to Congress. I know, sir, that a conclusion might be drawn from the silence of the Executive. But, on so momentous a question, I can leave nothing to inference. I submit, sir, that it is just and fair to the Chief Magistrate to propound a direct inquiry and obtain from him a direct reply.